118 "For receiving, keeping, and paying out money, in pursuance of any statute or order of court, one per centum on the amount so received, kept, and paid." In each of the criminal causes entitled The United States v. Emma Goldman and the United States v. Alexander Berkman, some days subsequent to defendants' arrest (June, 1917), evidently upon applications in their behalf consented to by the District Attorney, the court below directed: "That the sum of $25,000 cash, be deposited in the registry of this court in lieu and place of bail for the appearance of the above-named defendant before the United States District Court for the Southern District of New York, in accordance with the provisions of the recognizance to be given by said defendant." privilege or immunity enjoyed by citizens of Mr. Justice HOLMES and Mr. Justice BRANDEIS dissent. (250 U. S. 130) KINZELL v. CHICAGO, M. & ST. P. RY. CO. Defendants were afterwards convicted and (Argued April 15, 1919. Decided May 19, sentenced to imprisonment. Upon motions duly presented the clerk was afterwards directed to pay to defendants' counsel funds deposited under the above orders, less costs. He retained 1 per centum as compensation, and the court refused to declare this sum unlawfully withheld and direct its return. The matter is here by writ of error to the District Court. COMMERCE 1919.) No. 485. 27(5)—EMPLOYERS' LIABILITY— EMPLOYMENT IN "INTERSTATE COMMERCE." The filling with earth, by a railroad company, engaged in interstate commerce, of a wooden trestle, by which its track was carried across a gulch, the purpose being to continue the track It is now maintained that section 828 does on the solid embankment when completed, havnot apply to criminal cases. Further, that if ed the work of men and machinery to keep such ing progressed to the extent where it requir construed to be applicable where cash is interstate track clear of such earth during furdeposited in lieu of bail for appearance of ther construction, such work was not only conone charged with crime, it conflicts with the cerned with, but was an intimate and integral federal Constitution, Fifth Amendment, "No part of, the conducting of interstate transporperson shall * be deprived of tation over the bridge, so that a railroad emliberty, or property, without due ployé injured while so working was then emprocess of law; nor shall private property ployed in "interstate commerce" within the fedbe taken for public use, without just com-eral Employers' Liability Act (Comp. St. §§ 8657-8665). pensation;" also with article 4, § 2, cl. 1, "The citizens of each state shall be entitled to all privileges and immunities of citizens in the several states;" and with the Eighth Amendment, "Excessive bail shall not be required." * Our jurisdiction depends upon whether the case really and substantially involves the constitutionality of the section in question as construed and applied. Judicial Code, 238 (Act March 3, 1911, c. 231, 36 Stat. 1157 [Comp. St. § 1215]); Rakes v. United States, 212 U. S. 55, 58, 29 Sup. Ct. 244, 53 L. Ed. 401; Lamar v. United States, 240 U. S. 60, 65, [Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Interstate Commerce.] On Writ of Certiorari to the Supreme Court of the State of Idaho. Action by William Kinzell against the Chicago, Milwaukee & St. Paul Railway Company. Judgment for plaintiff was reversed by the Supreme Court of Idaho (171 Pac. 1136), and plaintiff brings certiorari. Reversed and remanded. ho, and John P. Gray, of Cœur D'Alene, IdaMessrs. James A. Wayne, of Wallace, Idaho, for petitioner. Mr. George W. Korte, of Seattle, Wash., for respondent. 36 Sup. Ct. 255, 60 L. Ed. 526. And we deem Mr. Justice CLARKE delivered the opin This case comes into this court on writ of certiorari to the Supreme Court of the state of Idaho and all of the facts essential to its decision are admitted or are not controverted, and are as follows: For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes *132 (39 Sup.Ct.) When the accident complained of in the the bridge, which, by the testimony of the case occurred, the railway company, respond- engineer in charge of bridges, had about a ent, was engaged in filling with earth a wood-year "of life" remaining when the accident en trestle-work bridge, 1,200 feet in length, occurred. For this reason it is contended by which its track was carried across a dry that the principles of the Pedersen decision, gulch *or coulee, the purpose being to contin- | 229 U. S. 146, 33 Sup. Ct. 648, 57 L. Ed. 1125, ue the track upon the solid embankment when Ann. Cas. 1914C, 153, do not apply. But in it should be completed. the view we take of the case this is not im It was admitted that the railway company | portant. was engaged in interstate commerce, and that during the progress of the filling the bridge was used for interstate trains. Pursuant to an order of court, the petitioner, an employé of the respondent, elected to rely on the federal Employers' Liability Act of April 22, 1908, c. 149, 35 Stat. 65 (Comp. St. §§ 8657-8665) for his right to recover. Several weeks prior to the accident to the petitioner Kinzell, the work of filling the bridge had progressed to such a stage that when earth was dumped from cars it would be heaped up beside the track higher than the tops of the ties and rails so that it became necessary to spread it by pushing it away from the track toward the edge of the fill, in order to prevent its falling back upon the rails and to widen the embankment. To thus spread the earth an appliance called in the record a "dozer," and sometimes a "bull dozer," was used. It consisted substantially of a flat car body with adjustable wings or scrapers, so designed as to remove any earth which might fall upon the rails and also to press or push that heaped up at the side of the track out to the edge of the embankment. When a trainload of earth would arrive at the bridge the practice was to couple the "dozer" to the forward end of the cars and then they and the "dozer" would be pushed to the place at which it was desired to unload the earth. After the cars were dumped the pulling of the "dozer" back with them would scrape the earth from the tops of the rails and would push it away from the track, thus contributing to keep the track clear and to widen the embankment. With these facts before it, the Supreme Court of Idaho, in its judgment which we are reviewing, reversed the judgment of the lower court in Kinzell's favor, solely upon the ground that he was not employed in interstate commerce at the time he was injured, and gave this as the reason for its conclusion: "We are of the opinion that constructing a fill to take the place of a trestle which is being used in interstate commerce is new construction, and that the fill does not become a part of the railroad until it is completed and the track is placed upon it instead of upon the trestle." Such conclusion, of course, is not derived from any construction of the act of Congress, but rests wholly upon the interpretation which the court placed upon the undisputed facts, as we have stated them. The federal Employers' Liability Act provides that: "Every common carrier by railroad while engaging in commerce between any of the several states * * * shall be liable in damages to any person suffering injury while he is employed by such carrier in such commerce." Stat. 65, c. 149. 35 It being admitted that the railway company was engaged in interstate commerce, the only question for decision is whether the petitioner was employed in such commerce, within the meaning of the act as construed by this court. In Pedersen v. Delaware, Lackawanna & For several weeks prior to the accident | Western R. R. Co., 229 U. S. 146, 33 Sup. complained of, Kinzell, with an assistant, Ct. 648, 57 L. Ed. 1125, Ann. Cas. 1914C, 153, had been in charge of this "dozer," using it it is stated that a guide to a decision of such as described, and in addition to this they a case as we have here may be found in the were required to remove, with shovels, earth questions: Was the work being done indeor stones which fell upon the track, so, the pendently of the interstate commerce in superintendent of the *railway testified, as to which the company was engaged, or was it make it safe for the operation of trains. The so closely connected therewith as to be a rails and ties had not been transferred to part of it? Was its performance a matter of the embankment, but were still sustained by indifference so far as that commerce was conthe bridge substructure when the accident oc- cerned, or was it in the nature of a duty curred. resting upon the carrier? And in other cases it is said, in substance, that in such inquiries may be found the true test of employment in such commerce in the sense intended by the act. Shanks v. Delaware, Lackawanna & Western R. R. Co., 239 U. S. 556, 558, 36 Sup. Ct. 188, 60 L. Ed. 436, L. R. A. 1916C, 797; New York Central R. R. Co. v. White, 243 U. S. 188, 192, 37 Sup. Ct. 247, 61 L. Ed. 667, L. R. A. 1917D, 1 Ann. Cas. Kinzell was injured by what he claimed was negligence of the company in the manner of coupling a train of cars to the "dozer" as an immediate preliminary to such an unloading and cleaning movement as we have described. Much is made in argument of the contention that the fill in progress was not the repairing of, nor the furnishing of support to, *133 *134 ion. Reversed. (250 U. S. 30) 1917D, 629. It is also settled that the doing, reversed, and the case remanded for further of work which has for its immediate pur- proceedings not inconsistent with this opinpose the furthering of the conduct of interstate commerce constitutes an employment in such commerce within the meaning of the act. New York Central, etc., R. R. Co. v. Carr, 238 U. S. 260, 35 Sup. Ct. 780, 59 L. Ed. 1298; Louisville & Nashville R. R. Co. v. Parker, 242 U. S. 13, 37 Sup. Ct. 4, 61 L. Ed. 119; Pecos & Northern Texas Ry. Co. v. Rosenbloom, 240 U. S. 439, 36 Sup. Ct. 390, 60 L. Ed. 730; Southern Railway Co. v. Puckett, 244 U. S. 571, 573, 37 Sup. Ct. 703, 61 L. Ed. 1321, Ann. Cas. 1918B, 69. It is in evidence in this case, indeed, it is obvious, that the "dozer" was not called into use until the fill had reached the level of the tops of the ties and had become of such width that the earth when dumped would pile up near the track so as to fall back upon it, if not removed, and that it was used for the double purpose of keeping the rails clear for the interstate commerce passing over them and *for pushing the material to the edge of the embankment to widen it. When COLEMAN v. UNITED STATES. INTERNAL REVENUE 36 - REFUNDING TAX A succession tax under Act June 13, 1898, 8 29, collected after passage, and so contrary to terms, of Act June 27, 1902, § 3, directing refunding of such taxes collected on contingent beneficial interests which shall not have vested prior to July 1, 1902, and forbidding a tax to be imposed on such an interest, is erroneously collected, within Act July 27, 1912, limiting time for presentment of claims for refunding internal tax. Appeal from the Court of Claims. Petition Action by Louise L. Coleman, as surviving administratrix of Walter H. Coleman, deceased, against the United States. dismissed (53 Ct. Cl. 628), and plaintiff appeals. Affirmed. See, also, 250 U. S. 30, 39 Sup. Ct. 415, 63 L. Ed. *Mr. H. T. Newcomb, of New York City, for appellant. Mr. Solicitor General Alex. C. King, of Atlanta, Ga., for the United States. Mr. Justice HOLMES delivered the opin to this it is added that a part of Kinzell's This is a suit to recover $6,721.71 paid for a tax upon the distributive shares of the children of Walter H. Coleman in his personal property. The tax was demanded and paid under the Act of June 13, 1898, c. 448, § 29, 30 Stat. 448, 464, 465. The later Act of June 27, 1902, c. 1160, § 3, 32 Stat. 406, directed the refunding of so much of such taxes "as may have been collected on contingent beneficial interests which shall not have been vested prior to July first," 1902, and forbade a tax to be imposed upon such an interest. On July 1, 1902, Coleman was dead but his debts had not been paid, the year allowed for the proof of claims against his estate had not expired, and the expenses of administration had not been ascerWe cannot doubt that the Supreme Court tained. Therefore, it is said, the interest of Idaho fell into error in regarding the fill of his children still was contingent. United as new construction so unrelated to the con- States v. Jones, 236 U. S. 106, 35 Sup. Ct. duct of interstate commerce over the bridge 261, 59 L. Ed. 488, Ann. Cas. 1916A, 316; at the time the accident to the petitioner oc- McCoach v. Pratt, 236 U. S. 562, 35 Sup. curred that the work being done by him Ct. 421, 59 L. Ed. 720. The tax was colshould be regarded as not related to or nec-lected on May 29, 1903. On March 17, 1914, essary to the safe conduct of that commerce, the claimants applied to the Collector of and the judgment of that court is therefore Internal Revenue and through him to the For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes (39 Sup.Ct.) scribed. 3. INTERNAL REVENUE 36 REFUNDING the commissioner of Internal Revenue on or before January 1, 1914, and that the Secretary of the Treasury shall pay to such claimants "as have presented or shall hereafter so present their claims," and shall establish such erroneous or illegal assessment and collection, prior presentation of such a claim, under Act June 27, 1902, c. 1160, § 3, 32 Stat. 406, though as a prerequisite to a prior suit against the collector, is sufficient. 4. COURTS 461-COURT OF CLAIMS-AcCRUAL OF CAUSE REFUNDING INTERNAL REVENUE TAX. Commissioner of Internal Revenue to re-removed by the subsequent enactment of Act fund it. The application was rejected and July 27, 1912, directing repayment of such taxes on March 9, 1916, the claimant began this to claimants presenting their claims as presuit. The Court of Claims held that it was barred by the Act of July 27, 1912, c. 256, 37 Stat. 240. That statute provides that "all claims for Under Act July 27, 1912, §§ 1, 2, providing the refunding of any internal tax alleged that claims for refunding of internal tax erto have been erroneously or illegally assess-roneously or illegally assessed or collected under ed or collected" under the above-mentioned Act June 13, 1898, § 29, may be presented to § 29 of the Act of June 13, 1898, "or of any sums alleged to have been excessive, or in any manner wrongfully collected under the provisions of said Act may be presented to the Commissioner of Internal Revenue on or before the first day of January, nineteen hundred and fourteen, and not thereafter." By 2 payment of claims so presented is directed. The act is entitled "An Act extending the time for the repayment of certain war revenue taxes erroneously collected," and the claimant contends that the present claim is not of that sort, that this tax hav- existed before, by Act July 27, 1912, authorizRights being created where they had not ing been paid without protest or any reser-ing presentment, on or before January 1, 1914, vation of rights, the claim is only for a bounty conferred by the Act of 1902 and that the benevolence of that act never has been withdrawn. But, bounty or not, the direction in the Act of 1902 was on the footing that the sums ordered to be repaid were collected erroneously, Vanderbilt v. Eidman, 196 U. S. 480, 25 Sup. Ct. 331, 49 L. Ed. 563, and was an order for the refunding of a tax alleged to have been erroneously collected. The present tax had not been collected when the Act of June 27, 1902, was passed, but was collected afterwards contrary to its terms. There was little bounty in its application to such a case. No argument can make it plainer than do the words themselves that the Act of 1912 applies to the present claim, and that it was presented too late. Judgment affirmed. (250 U. S. 33) SAGE et al. v. UNITED STATES. of claims for refunding of internal tax erroneously or illegally assessed or collected under Act June 13, 1898, § 29, and providing for repayment to such claimants "as have presented or shall hereafter so present their claims," and shall establish such assessment and collection suit thereon in 1917, is within the six years after the claim first accrued limited by Rev. St. § 1069 (Comp. St. § 1147) for suit in the Court of Claims, though the claim was presented before enactment of the act of 1912. Appeal from the Court of Claims. Action by William H. Sage and others, executors of Dean Sage, deceased, against the United States. Petition dismissed (53 Ct. Cl. 628), and plaintiffs appeal. Reversed. Mr. H. T. Newcomb, of New York City, for appellants. Mr. Solicitor General Alex. C. King, of Atlanta, Ga., for the United States. * Mr. Justice HOLMES delivered the opin ion of the Court. This is a claim under the Acts of June 27, (Argued April 29, 1919. Decided May 19, 1919.) 1902, c. 1160, § 3, 32 Stat. 406, and of July No. 344. 27, 1912, c. 256, 37 Stat. 240, to have refund1. JUDGMENT 702-RES JUDICATA-IDEN- ed a tax collected under the Act of June 13, TITY OF PARTIES. Judgment for part only of the amount claimed in action against the collector of internal revenue to recover back taxes paid, not being a judgment for or against the United States, is not a bar to subsequent action against it for the balance. 2. INTERNAL REVENUE 36 REFUNDING TAX-EFFECT OF STATUTE ON PRIOR JUDG MENT. Were judgment for part only of the amount claimed, in action against the collector of internal revenue to recover back taxes erroneously collected under Act June 13, 1898, § 29, otherwise a bar to action against the United States to recover the balance, the bar would be 1898, c. 448, § 29, 30 Stat. 448, 464, 465, upon 23, 1902, so that the debts of the estate were For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes ichs, 124 U. S. 315, 8 Sup. Ct. 514, 31 L. Ed. 471. But perhaps it would be enough to say that if the judgment otherwise were a bar the bar would be removed by the subsequent enactment of the Act of July 27, 1912, c. 256, 37 Stat. 240, upon which, as well as the Act or 1902, this claim is based. [3] The Act of July 27, 1912, after providing in § 1 for the presentation of claims for taxes erroneously collected under the above mentioned § 29, as stated in the preceding case of Coleman v. United States, 250 U. S. 30, 39 Sup. Ct. 414, 63 L. Ed. directs repayment in § 2 to "such claimants as have presented or shall hereafter so present their claims," and establish them. The claimants had presented their claim, and so had complied with the letter of the Act. But it is said that they filed it simply as a prerequisite to their suit against the collector and that its effect was extinguished by the judgment in that suit. This argument reads into the words of the statute what is not there and reads what was there out of the claim. The claim was presented to the Commissioner of Internal Revenue to get the money. The suit was only the undesired alternative in case the Commissioner rejected the claim. It plays no part in the question that we now are considering. Suppose that no suit had been brought we can see no ground for denying that the claim would have been presented within the meaning of the Act. It did not have to be a claim under the act as the statute in terms contemplated that it might have been presented before the statute was passed. But if the presenting was sufficient before the suit was brought it is sufficient now. The statute of course does not confine its act of justice to unrejected claims. have it refunded on the ground that the leg-, from the subsequent official act, not from acies were not subject to taxation under the judgment itself. United States v. *Frer29 was made to the Commissioner of Internal Revenue, but was denied in the following month. Two years later the petitioners sued the Collector and in May, 1912, got judgment for $30,275.49, with interest and costs, which was satisfied by the United States. McCoach v. Pratt, supra, and United States v. Jones, 236 U. S. 106, 35 Sup. Ct. 261, 59 L. Ed. 488, Ann. Cas. 1916A, 316, had not been decided at that time and it was held that some of the interests were vested in enjoyment. Ward v. Sage, 185 Fed. 7, 108 C. C. A. 413. This suit is for the unrepaid residue and was begun on January 23, 1917. The Government contends that the judgment and also the Act of July 27, 1912, c. 256, § 1, 37 Stat. 240, are bars to the present claim. [1, 2] The former judgment is not a bar. It is true that the *statutes modify the common law liability for money wrongfully collected by duress so far as to require a preliminary appeal to the Commissioner of Internal Revenue before bringing a suit. Rev. St. § 3226 (Comp. St. § 5949). It is true also that it is the duty of the District Attorney to appear for the collector in such suits, Rev. St. 771 (Comp. St. § 1296); that the judgment is to be paid by the United States and the collector is exempted from execution if a certificate is granted by the Court that there was probable cause for his act, Rev. St. § 989 (Comp. St. § 1635); and that there was a permanent appropriation for the refunding of taxes illegally collected. Rev. St. § 3689 (17) (Comp. St. § 6799). No doubt too, if it appeared in a suit against a collector who had acted with probable cause and had turned over his money to the United States, that a part of the tax properly was due to the United States, unnecessary formalities might be omitted and the sum properly due might be retained. Of course, the United States in such a case could not require a second payment of that sum. Crocker v. Malley, March 17, 1919. 249 U. S. 223, 39 Sup. Ct. 270, 63 L. Ed. 573. But no one could contend that technically a judgment of a District Court in a suit against a collector was a judgment against or in favor of the United States. It is hard to say that the United States is privy to such a judgment or that it would be bound by it if a suit were brought in the Court of Claims. The suit is personal and its incidents, such as the nature of the defenses open and the allowance of interest, are different. It does not concern property in which the United States asserts an interest on its own behalf or as trustee, as in Minnesota v. Hitchcock, 185 U. S. 373, 388, 22 Sup. Ct. 650, 46 L. Ed. 954. At the time the judgment is entered the United States is a stranger. Subsequently the discretionary action of officials may, or it may not, give the United States a practical interest in the amount of the judgment, as determining the amount of a claim against it, but the claim would arise [4] The Act of 1912 applied in terms to "all claims for the refunding of any internal tax alleged to have been erroneously or illegally assessed and collected" under the above mentioned § 29. The only condition was that it should have been presented not later than January 1, 1914. Until that time no statute of limitations could begin to run. *After the Act was passed an application was made on September 7, 1916, to the Secretary of the Treasury for repayment of the residue of the erroneously collected tax. It was rejected on October 30, 1916, on the mistaken ground that the judgment against the collector finished the matter. This suit was brought on January 23, 1917, and so was within the six years allowed by Rev. St. § 1069 (Comp. St. § 1147), for suits in the Court of Claims. The Act of 1912, like that of 1902 created rights where they had not existed before, United States v. Hvoslef, 237 U. S. 1, 12, 13, 35 Sup. Ct. 459, 59 L. Ed. 813, Ann. Cas. 1916A, 286, and the claimant's rights are not barred. See further James v. Hicks, 110 U. S. 272, 4 Sup. Ct. 6, 28 L. Ed. 144. Judgment reversed. |